Connecticut. Supreme Court of Errors.

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The defendant not redeeming, a committee duly appointed
made an appraisement under oath and filed with the clerk
the following report: — **We the undersigned, appraisen
appointed by the Superior Court to apprtwse the property
foreclosed in the case of Moses M. Sisson v. Charhs M
Tubbs^ having viewed the premises, do appraise the value to
be 91,800, free horn all incumbrances.'* The plaintiff insti-
tuted this suit in the Court of Common Pleas for the
recovery of that portion of his debt remaining unpaid after
the application of the value of his mortgage security up<Mi
it. Upon the trial he asked leave to prove that on October
14th, 1878, a mortgage prior to his own was in life, securing
a debt amounting to 91,269.S7 ; but the court excluded the
evidence. He also asked leave to prove by evidence other
than the certificate that the appraisers estimated the vdue



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204 NEW LONDON COUNTY.



Sisson 0. Tubbs.



of the land regardless of incumbrances; this was denied.
He also asked leave to introduce evidence other than the
certificate as to the value of the land on October 14th, 1878,
regardless of incumbrances; this was denied. He also
claimed that it was the duty of the appraisers to estimate
the value of the land regardless of incumbrances ; but the
court determined that it was their duty to appraise the
equity only, and that if they appraised the whole value
relief could be obtained only by petition to the Superior
Court. He also insisted that the appraisers had in fact
determined the value to be $1,800, less proven incumbrances ;
but the court determined that they had fixed the value of
the land applicable to his debt at 9I98OO, and that he was
concluded thereby, and rendered judgment for the defen-
dant. The plaintiff moved for a new trial.

The language of the statute is necessarily general ; it is
to be made applicable to cases in which the mortgage fore-
closed is the first and only incumbrance, and to those in
which it is the second or third ; in either, the office of the
appraisers* report is simply to establish, as between the
debtor and creditor, an unchangeable standard of value by
which to determine the question, whenever thereafter the
creditor shall choose to raise it, whether the interest in land
obtained by him by foreclosure equaled in value the
debt due to him. A reported appraisement which enables
a tribunal to determine that question without re-opening
the question of value, satisfies the requirements of the
statute.

Therefore, in the case before us, the appraisers' report
which determines the entire value of the land without deter-
mining either the existence or extent of prior incumbrances
is sufficient; and upon subsequent suit for any balance
unpaid the. creditor may prove the amount of prior incum-
brances which he was compelled to remove ; and the debtor
may prove that there were none ; and this question may be
determined without re-opening the inquiry as to the value
of the land.

There was error therefore in rejecting evidence offered by



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OCTOBER TERM, 1882.. 296

Komdch Printing Co. v. Eloppenberg.



the plaintiff for the purpose of proving the existence of a
prior incumbrance, and there must be a new trial.

In this opinion the other judges concurred.



The Norwich Printing Company vs. Henrt C. Elof^
penbsro and another.

A plaintiff, after suit brought, can not assign the demand to his attorney,
ao as to defeat a legal right of set-off which the defendant had at the
time the suit was commenced.

This right of set-off, originally given by Gen. Statutes, p. 434, sec. 18, it
fuUy established by the 5th section of the Practice Act.

Action on a bond of recognizance, on which Henry C.
Kloppenberg, one of the defendants, was principal and John
M. Thayer, the other defendant, was surety. The suit was
brought originally before a justice of the peace ; the defeur
dants pleaded in abatement, which plea the justice overruled
and ordered the defendants to answer over. From this
judgment Thayer appealed to the Court of Common Pleas,
and Kloppenberg not appealing nor answering over, judg-
ment was rendered against him. The following facts were
found by the Court of Common Pleas, (^Mather^ J.')

On the first day of February, 1879, the plaintiff recovered
a judgment before a justice of the peace against the defen-
dant Kloppenberg, from which judgment he appealed to the
Court of Common Pleas for New London County, and on
that appeal the defendant Kloppenberg, as principal, and
John M. Thayer, the other defendant in this suit, as surety,
entered into a bond of recognizance to the plaintiff in the
form prescribed by statute to prosecute the appeal to effect;
and upon this bond the present suit is brought.

The appeal was duly entered by Kloppenberg in the Court
of Common Pleas, and at the February term, 1880, it was
defaulted and judgment rendered for the plaintiff to recover



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-.196 NEW LONDON COUNTY.

Korwioh Pilntiiig Oo. v. S^k^penberg.

of Kloppenberg eight dollars and twenty-five cents damages,
and twenty-seven dollars and sixty-four cents costs, and the
judgment has never been satisfied in whole or in part.

William H. Jennings, Jr., was the attorney of the plaintiff
in that suit, and the latter was indebted to him, as such
attorney, for his fees and disbursements therein for the full
amount recovered, of which he gave notice in writing to the
defendants, on the 18th day of March, 1881, and of his claim
for a lien on the judgment for the same.

On the 6th of January, 1882, this suit being pending,
the liability of the defendants to the plaintiff on the bond of
reoognizance never having been satisfied or discharged, thfi
plaintiff, in consideration of its indebtedness to Jennings
for such services and disbursements, and to secure him for
his fees and disbursements as attorney in the present suit,
and in good faith, assigned to him the judgment against
Kloppenberg, and the claim now in suit ; and he gave notice
of the assignment in writing the same day to the defendanta,
which assignment and notice were before any answer had
been filed in this suit, and before Jennings had any knowl*
edge of any claim on the part of Thayer of any indebted*
ness of the Norwich Printing Company to him. The
indebtedness to Jennings remains unpaid, and he claims tba
demand in suit by reason of the lien and assignment.

Jennings was not a party to this suit at its commeneemeat
and has not been substituted or joined as a party since.

There was, at the commencement of the present suit, and
at the time of the assignment, due from the Norwich Print-
ing Company to Thayer, for professional services, a larget
sum than the amount of its claim against him on the bond ;
of which he claimed, in his answer, to set-off against the
elaim of the plaintiff siifficient to satisfy the same, ani
asked judgment for the balance.

The defendant requested the court to rule that he ma
entitled to set off so much of his claim against the debt to
the plaintiff as would be snflScient to satisfy it, and to
recover a judgment ag^ainst the plaintiff for the balance, and
that the lien of Jennings, as attorney, upon the judgment



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OCTOBER TERM, 1882. JW

Norwich Printing Co. v, Kloppenberg.

against Kloppenberg and the assignment to him of that
judgment and of the claim in suit, did not impair the^
defendant's right in this suit to the set-off claimed.

The court did not so rule, but found that the defendant
was indebted to the plaintiff at the commencement of this'
suit in the sum of $27.64, and ruled that Jennings had an
attorney's lien thereon to the full amount thereof j that the
same was legally assigned to him and that he was equitably
entitled to the same ; that by reason thereof the defendant
was not entitled to the set-off claimed ; and tJiat the plain-
tiff was entitled to a judgment against the defendant for th^
sum of j»27.64, and rendered judgment accordingly.

The court rendered judgment for the plaintiff for tins'
amount, and the defendant appealed to this court.

Jl M, Thayer and C. F. Thayer^ in support of the appeaL

1. Jennings, as attorney for the plaintiff in the original
suit against Kloppenberg, had no lien upon the judgment
rendered in that suit which could affect the rights of any
third party ; much less any claim upon the demand in this
suit, as a security for that judgment, which could affect the
rights of the defendant in this suit. Rumrill t. Hwn,ting'
tofiy 5 Day, 168 ; Q-ager v. Watsim^ 11 Conn., 168 ; AndrmoB
T. Morne^ 12 id., 444; Bef^a/min v. Benjamin^ 17 id., 110.

2. By Gen. Statutes, p. 424, sec. 13, and the Pi-actio#
Act, sec. 5, the defendant had a right to set off his debt
against that of the plaintiff. The assignment of the plain-
tiff's debt pending the suit could not defeat that rights
Had the assignee brought the suit in his own name und^
Gen. Statutes, p. 417, sec. 6, or had he, after the assignment,
been substituted as plaintiff, as he might have been undep
the Practice Act, the defendant would have been allowed
to set off this debt due from the assignor. Gen. Statutes^
p. 424, sec. 14 ; Prac. Act, sec. 15 ; Rules, eh. 1, sec. 6.

8. This case is not within the rule established in Rwm^
riJl y. Huntington^ 5 Day, 168, and adhered to in Benjamin
V. Benjamin^ 17 Conn., 110, and Ripley v. Bull^ 19 id., 5i«
In each of those cases it was attempted to enforce in a court



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1



298 NEW LONDON COUNTY.

Norwich Printing Co. v. Kloppenberg.

of equity an equitable right of set-off. The first case was
decided before there was any statute of set-off. In the second
the set-off was not claimed by virtue of, and clearly was not
embraced in, the then-existing statute of set-off. In the
third the plaintiff claimed to set off her debt by reason of
the equities of the statute of set-off, and the court said ^^if
by that statute the plaintiff could have availed herself of
the right of set-off which she now seeks she had her remedy
at law in that action, which would be a complete answer to
the present bill in equity ; and if she could not, it shows
that the case was not embraced by the statute." In the
present case the defendant has the right by statute to set
off his debt.

4. The equitable doctrine of set-off, " that mutual debts
should compensate each other by deducting the less from the
greater, the difference being the only sum which can justly
be due," has been incorporated into the law by our statute.
But if one of the parties can, by bringing suit upon his
claim and afterwards assigning it to his lawyer defeat the
other party's right of set-ofi^ the law is practically null.

S» LticaSy contra.

1. The court has found as a fact that Jennings had a
lien on the judgment of the plaintiff against Kloppenberg,
and that it and the claim in suit were assigned to him. His
lien on that judgment must take precedence of the rights
of the defendant Thayer in the present suit, as the lien
accrued before the suit was brought ; and the assignment of
that judgment must be good against Thayer, as he had no
right of set-off against the judgment, but only against the
claim on the bond, which was a distinct and separate thing.

2. Jennings having an attorney's lien on that judgment
and an assignment of it, he acquired thereby a lien on the
bond in suit as security for its payment. Freeman on Judg-
ments, sec. 431. If therefore the assignment of the judgment
was good against Thayer, the bond also passed to Jennings
as against Thayer.

8. In addition to this he had an assignment of the claim



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OCTOBER TERM, 1882. 299

Norwich Printing Co. v. Kloppenberg.



in suit itself on whicb he held such prior attorney's lien, to
secure him for his fees and disbursements in the suit. This
claim haviug been assigned in good faith to him, to secure
him for his fees and disbursements, not only in the case in
which judgment was rendered, but in the suit then pending,
he acquired thereby a claim thereto that the defendant
could not defeat by a set-off of any demand he had against
the plaintiff. 1 Swift Rev. Dig., 647 ; JHumrill v. Hunting-
ton^ 6 Day, 163; Benjamin v. Benjamin^ 17 Conn., 110;
Bipley v. Bull, 19 id., 62.

Carpenter, J. It will relieve this case of some confu-
sion and a possible misunderstanding of the real point in
dispute if we bear in mind the distinction between this suit
against Thayer and the former suit against Kloppenberg
which is now ended in a judgment. The present suit is now
prosecuted against Thayer alone ; and against the demand
now made on him he seeks to set off a claim which he has
against the plaintiff. He claims no set-off or other defence
in respect to the judgment against Kloppenberg. Nor will
his claim, if allowed, affect that judgment or the assignment
of it to Jennings, the plaintiff's counsel. That judgment
and assignment will remain in full force whatever may be
the disposition of this case. Nor is the subject matter of
this suit identical with that. The most that can be said is,
that this suit grows out of that ; and if the demand against
Thayer is collected, it will operate as a partial payment of
that judgment. In that way Jennings, aside from the
assignment to him of the demand in suit, may have an inci-
dental interest in the question ; but that circumstance in no
wise affects the equities existing between Thayer and the
plaintiff. If Jennings has any interest that will affect those
equities it grows out of the assignment of the demand
against Thayer, and not out of the assignment of the judg-
ment against Kloppenberg. Therefore we may lay that
judgment out of the case, and the question presented is
simply this: — Can a plaintiff, after suit brought, assign the
demand to his attorney and thereby defeat a legal right of



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NEW LONDON COUNTY.



Norwich Printing Co. «• Kloppenb«iig.



set-off which the defendant had at the time the suit waa
eommenced? The bare statement of ttie question ought to
be a sufficient answer.

The plaintiff however claims that Bvmrill y. Suntinfftomt^
6 Day, 168, Benjamin r. Benjarmn^ 17 Conn., 110, and
MifUy T. BuU^ 19 id., &8, virtually answer the question in
the affirmative. Mumrill v. Huntington was this : — Rumrill
recovered a judgment against Huntington ; Huntington at
the same time held three judgments against Rumrill. Runr
rill assigned his judgment to Bradley, his attorney,^ of
which Huntington had notice. Huntington afterwards
brought a suit in equity against Rumrill for a set-off. The
County Court decreed a set-off, and the judgment was re**
versed on a writ of error. The statute of set-off had not
then been enacted and the court held that Bradley, being
a creditor of Rumrill, was equal in equity with Huntington,
another creditor, and, consequently^ that the assignment t9
him was effectual to prevent the set-off. Benjamin v.
Benjamin was similar in its facts and the principle involved
was identical with that involved in RumriU v. EuntingUm.
A majority of the court, three judges against two, decided
it in the same way, but admitted that it was an exception
to the general rule, that an assignee of a non-negotiable
chose in action takes it subject to equities existing betwe^i
the original parties, and contrary to the general current of
decisions elsewhere. Ripley v. Bull presented the same
question upon similar facts, except that the debts were not
evidenced by judgments. The court held that that circum-
stance did not distinguish the case fW>m the others, and
following those cases decided it in the same way.

These eases being, as they confessedly are, exceptions to
a salutary rule of very general application, and contrary to
the general current of authorities in other jurisdictionsi
liable as they certainly are to deprive suitors of a strong
natural equity, should not be followed except in cases pre-
cisely analagous in fact and in principle. In other woi^
the exception should not be extended.

Can this case then be reasonably distinguished from the



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OCTOBER T£&M, IfiSS. 801

Norwich Printing Co, 9. KlQppenberg.

oases referred to? We think it can in at least two material
and important particulars.

In the first place, when this suit was commenced the
defendant had a legal right by statute to set off his claim.
The Practice Act (sec. 6,) provides as follows : — " In cases
where the defendant has, either in law or in equity, or in
both, a counter-claim, or right of set-ofi, against the plain-
tiff's demand, he may have the benefit of any such setoffs
or counter-claims by pleading the same as such in his answer,
and demanding judgment accordingly .'' This is broad and
comprehensive language and was evidently designed to do
Mfia^ witii all technicalities and enforce the equities between
the parties in all oases. No such statute was in force when
the decisions referred to were made. When the first case
WM «ieoided there was no statute of «et-off. Such a statute
iHfts bi force when the secosad was decided, (6en. Statutes,
^.424, sec. 18,) but does not seem to have attracted the
attention of the court; and tiie third decided that the
Maiute was not applicable to the facts of the case.

In the next place, the assignment in this case was not
mafile until after the suit was brought. In all the cases
te&rred to the assignment was prior to th^ bringing of a
petition for a set-off. In matters of this kind the rights of
tlie parties should be enforced as they existed at the 00m-
nienoement of the suit. When this suit was commenced
fcnnii^ had no claim on the demand against Thayer, and
he oould subsequently acquire none that would defeat the
defendant's statutory right to plead his set-off or counter-
elaim in defence.

The Court of Common Pleas having decided otherwise,
the judgment is erroneous and must be reversed.

In this opinion the other judges concurred*



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802 NEW LONDON COUNTY.

Brown «. Congdon.



William B. Bbown akd akotheb v9. Joseph B. Ck>KG-

DON, EXBCUTOB.

A complaint for a new trial will not be entertained where the gronnd on
wliich it is sought is the misconduct of a juror, affecting the yerdict,
although not discovered by the party seeking a new trial until it was too
late to file a motion in arrest of judgment. (Two judges dissenting.)

A motion in arrest of judgment is the proper and only remedy in sudb a
case.

Writ of error from a judgment of the Superior Conit
dismissing a complaint praying for a new trial. The com-
plaint was as follows : —

To the sheriff, &c. By authority of the state of Conneo-
ticut you are hereby commanded to summon Joseph B.
Congdon, of New London, as he is the executor of the will
of James Smith, late of New London, deceased, to appear
before the Superior Court, to be held * * ; then and
there to answer unto William B. Brown and Mary E. Gold-
ebar, both of the city of Brooklyn, in the state of New
York, in a civil action, wherein the plaintiffs complain and
say:

First. The plaintiffs appealed to this court, at its March
term, 1878, from the decree of the court of probate for the
district of New London, approving of a certain instrument
in writing purporting to be the last will and testament of
said James Smith, deceased.

Second. Said appeal came on for trial to the jury at the

September term, 1879, of this court, and a verdict was

rendered sustaining the validity of said will and said decree

the court of probate approving of said will; which

iict was accepted by the court, and judgment rendered

*eon at said term.

^hird. During the trial of said cause to the juiy, and

le the case was under consideration, Jefferson Perkins,

of the jury impannelled in said cause, had a conversa-

with James S. Mitchell, of the town of Groton, regard-



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OCTOBER TERM, 1882. 808

Brown 9. Congdon.

ing said cause. Said Mitchell made statements to said
Perkins concerning the merits of the cause, derogatory to
the claims of the plaintiffs made on the trial, and attempted
to persuade him to render a verdict sustaining said will and
the decree of said court of probate, and adverse to the
plaintiffs.

Fourth, By reason of said conversation with said Mitch-
ell, the said Perkins agreed to, and did, unite with the jury
in rendering a verdict for the appellees in said cause ; and
except for said conversation no verdict would have been
rendered in said cause in favor of said appellees.

Fifth. The plaintiffs had no knowledge of said facts
until after the adjournment of said court.

Sixth. Said verdict and judgment against the plaintifiSs,
sustaining the validity of said will and said decree, are
unjust.

The plaintiffs claim that said former verdict and judg-
ment be set aside, and that they be allowed a new trial of
said cause.

To this complaint the defendant demurred, and the court,
(Jlovey^ «/.,) sustained the demurrer and dismissed the
complaint, on the ground that the court had no jurisdiction
of the subject matter of the complaint.

D. Chadwich and S. LucaB^ for the plaintiffs.

The Supreme Court may grant new trials of causes for
mispleading, discovery of new evidence "or other reasonable
cause." Gen. Statutes, p. 447, sec. 1 ; 1 Swift Dig., 816.
The petition must be brought within three years after judg-
ment is rendered. The only question in this case is, whether
tampering with the jury, and thus obtaining a verdict, is a
" reasonable cause," when the fact is not known until after
the close of the term. The claim is made that there is no
remedy except by motion in arrest filed within twenty-four
hours after verdict. Gen. Statutes, p. 443, sec. 7; Practice Act,
p. 8, sec. 6. And the case of Stone v. Stevens^ 12 Conn., 282,
is relied upon as conclusive that the Supreme Court has no
|)ower on a petition to grant a new trial for misconduct of



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NEW LONDON COUNTY.



Brown 9. CongdoB.



felie jury, whet^r the fact is known or not, except on
motion made within twenty-four hours after verdict rendered.
That case, however, does not authorize any such claim, the
only question there discussed being as to the power of the
€Ourt to fix by its rules of practice the time within whidi
motions in arrest should be made.

The case before the court is not a motion^ which under the
rules must be filed within twenty-four hours. It is a petir
tion for a new trial, either in equity or at law, according as
the court may determine whether our rights are legal or
equitable. Practice Ax^t, p. 8, see. 6.

We have a right to maintain thig petition at law under
Gen. Statutes, p. 447, sec. 1. The rule of practice as to
morons is rigid, and if we attempt to take advantage of
ihat mode, the motion must be filed within the specified
time. But in cases where through no negligence it is impos-
sible to take advantage of the remedy by motion, then the
remedy by petition can be used.

The statute authorizing a motion for misconduct of the
jury to be made, and which by application of the general
•rules must be made within twenty-four hours, does not in
terms or in spirit exclude the right by petition. Nor does
the statute authorizing a petition for a new trial exclude us.
It is a broad and liberal act, intended by the legislature to
embrace all cases where a reasonable cause is shown, leaving
it to the discretion of the court to determine whether the
facts show a reasonable cause. It would seem that if a new
trial may be granted for mis-pleading, or for newly dis-
covered evidence, it ought surely to be granted when a
party has bought up a jury and thus obtained a verdict, and
when the complainant had no knowledge of the fact until
after the close of the term.

The petition is within the equity jurisdiction of the court.
** Equity will interfere in all cases where by accident, mis-
take, fraud or otherwise, a party has an unfair advantage in
proceeding in a court of law, which must neoessarily make
that oourt an instrument of injustice, and will also generally
proceed to administer all the relief which the particulav



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OCTOBER TERM, 1882. 80&

Brown v, Congdon*

ease requires." 2 Story E(j. Jur., § 885. *' It may be stated
as a general principle that any facts which prove it to be
against conscience to execute such judgment, and of which
the injured party could not have availed himself in a court
of law, or of which he might have availed himself at law,
bat was prevented by fraud or accident without fault or



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